How Appealing

Friday, October 19, 2007

Available online from Tony Mauro reports that “New Study Suggests Veteran Advocates Sway Supreme Court; Research draws controversial connection between growth of the Supreme Court Bar and the Court’s new pro-business tilt.”

An article is headlined “Federal Circuit: Legal-Mal Suits With Patent Infringement Elements Belong in Federal Court.” My earlier coverage appears at this link.

An article reports that “Fla. High Court Rules Those Who Disclose HIV Results Can Be Sued for Damages.” You can access Thursday’s ruling of the Supreme Court of Florida at this link.

In other news from Florida, “Judge Defends Sealing of Electronically Filed Porn Images; Litigation by longtime crusader against violent video games prompts judge’s administrative order.”

And the brand new installment of my “On Appeal” column is headlined “Suing to Abolish Unpublished Appellate Court Rulings.”

Posted at 11:20 PM by Howard Bashman

“‘Constitutional originalist’ speaks out at VU campus”: The Post-Tribune of Gary, Indiana today contains an article that begins, “Standing in the pulpit of the Chapel of the Resurrection in Valparaiso, U.S. Supreme Court Justice Antonin Scalia preached his judicial philosophy of originalism Thursday.”

And The Times of Munster, Indiana reports today that “Scalia speaks at VU.”

Previously, Valparaiso University School of Law issued news releases titled “Supreme Court Justice Scalia to give public lecture” and “Law students present arguments to Supreme Court Justice Scalia.”

Posted at 8:47 PM by Howard Bashman

“20 Mack jurors picked, 15 to go”: The Reno Gazette-Journal today contains an article that begins, “Continuing at a snail’s pace, defense attorneys and prosecutors questioned another 14 people on Thursday and selected five to potentially serve as jurors in the Darren Mack murder case.”

And later today, the newspaper posted online an update headlined “Jury selection continues in Mack case.”

Posted at 8:38 PM by Howard Bashman

“More lawyers join criticism of Keller; Latest complaint against judge in death row case also includes signatures of other judges”: The Houston Chronicle today contains an article that begins, “Joining a swelling tide of criticism, 130 attorneys from Harris County have filed a judicial conduct complaint condemning the actions of Judge Sharon Keller, who presides over the Texas Court of Criminal Appeals. The latest complaint against Keller, filed late Wednesday by the Harris County Criminal Lawyers Association, also was signed by state District Judge Susan Criss of Galveston, retired state District Judge Jay W. Burnett and six regular citizens.”

And on Tuesday of this week, The Houston Chronicle contained an article headlined “Views divided on judge in dispute over executed man; Keller is seen either as a solid jurist or an ideologue.”

Posted at 3:47 PM by Howard Bashman

“Should former BP chief testify? Court to decide if ‘Lord John’ can be questioned in Texas City explosion cases.” Chuck Lindell has this article today in The Austin American-Statesman.

And The Houston Chronicle today contains an article headlined “Court hears arguments on BP blast testimony” that begins, “A battle over whether former BP CEO John Browne should be forced to testify in a deposition about the deadly 2005 explosion at the company’s Texas City refinery reached the state Supreme Court on Thursday.”

Posted at 3:44 PM by Howard Bashman

“Hawaiians Argue Over Ancestry”: The Associated Press provides a report that begins, “In Hawaii, where blood and ancestry matter as in no other state, a legal challenge is posing this question: Who is sufficiently Hawaiian? In Hawaii, ancestry is more than just a matter of ethnic pride. Under a program created by Congress in 1921, Native Hawaiians with strong bloodlines can get land for a home for $1 a year. Those with more mixed ancestry still receive many other benefits, including low-interest loans and admission for their children to the richly endowed and highly regarded Kamehameha Schools.”

Posted at 3:15 PM by Howard Bashman

Second Circuit reinstates in part a lawsuit challenging as preempted by federal law Connecticut’s efforts to make the gift card industry more consumer-friendly: You can access today’s ruling at this link.

Posted at 10:37 AM by Howard Bashman

As expected, the U.S. Court of Appeals for the Second Circuit has today issued a revised version of its decision in Higazy v. Templeton: On page seven, today’s version of the opinion states, “This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.” The version of the opinion that the Second Circuit posted online yesterday and then withdrew did not contain those redactions.

Posted at 10:25 AM by Howard Bashman

“On Day 2, Democrats See Change In Mukasey; Nominee Endorses President’s Positions”: The Washington Post contains this front page article today.

The Los Angeles Times reports today that “Mukasey hearing turns prickly; Widely praised a day earlier, the Justice nominee angers Democrats with remarks on a torture and executive power.”

The New York Times reports that “Senators Clash With Nominee About Torture.”

And McClatchy Newspapers report that “Mukasey won’t rule out expansive action in war on terror.”

Posted at 9:10 AM by Howard Bashman

“Tribune deal is mired in FCC rift over cross-ownership rules”: Jim Puzzanghera has this article today in The Los Angeles Times.

Posted at 8:58 AM by Howard Bashman

“Young law school grad skips the bars and tries to pass the bar instead; Eighteen-year-old Kathleen Holtz has already been hired by a Century City firm; If she doesn’t fail the exam, she’ll be the youngest licensed lawyer in the nation”: The Los Angeles Times today contains an article that begins, “Other fledgling lawyers may toast the news that they’ve passed the bar exam by popping open a chilled bottle of champagne. Not Kathleen Holtz. When results of the most recent California bar exam are released next month, the 18-year-old law school grad will be too young to drink legally. And, as the youngest practicing attorney in California — if not the nation — Holtz is loath to break the law.”

Posted at 8:47 AM by Howard Bashman

“Blogger Posts Opinion Withdrawn Over Security Concerns”: This report appears this morning at the ABA Journal, referring to this post of mine from yesterday afternoon.

Because I happen to be the blogger in question, I reproduce here the response I just dispatched to the email I received this morning from the author of the ABA Journal’s report:

The opinion had already been publicly issued by the Second Circuit on October 18, 2007, posted to the internet, viewed by hundreds if not thousands of individuals, and was in circulation via email among those interested in the case. The Higazy case is a case in which there is great public interest, and I received at least half a dozen emails alerting me to the opinion’s issuance yesterday morning.

I was unable to link to the opinion immediately because I was out of the office on client business until yesterday afternoon. When I returned to the office, the opinion had already been taken offline by the Second Circuit without any publicly-issued explanation. I therefore put a post on my blog asking if any of my readers had retained a copy and would be willing to email it to me so that I could return the decision to the internet, where the Second Circuit had originally placed it. Shortly thereafter, one of my regular email correspondents forwarded a PDF copy of the decision that the Second Circuit had posted earlier in the day to its web site.

No one from the Second Circuit has attempted to explain to me the so-called security concerns — which as far as I can tell based on my own analysis apparently arise from certain statements attributed to Mr. Higazy in the opinion’s factual recitation — that led the Second Circuit to remove the opinion from its web site after the opinion had been posted there for all to see and access. Regardless, the Second Circuit official who contacted me admitted that the court was in no position to attempt to retrieve every electronic copy of the decision that the public had downloaded from that court’s web site on October 18th, and thus it seemed clear to me that whatever security concerns there were had already been irreparably harmed by the Second Circuit’s apparently premature public release of the decision.

When I posted the opinion at the “How Appealing” blog, hosted by American Lawyer Media, a respected publisher of legal news, there was no explanation publicly available anywhere or privately available to me for why the Second Circuit had withdrawn the opinion. In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the internet, referred to information contained in an appendix whose contents remained under seal.

If there is a lesson here, it is that courts should not make publicly available over their web sites decisions that they do not want to make available to the public, and if a court does so, there is no way to “undo” a decision’s public issuance.

The article from Josh Gerstein of The New York Sun reporting on the opinion’s issuance, which that newspaper posted online at 7:51 p.m. eastern time last night, can be accessed here.

Posted at 8:28 AM by Howard Bashman

“Mother of Olympic bomber Rudolph complains of son’s prison treatment”: Wednesday’s edition of The Chattanooga Times Free Press contained an article that begins, “The mother of convicted Olympic Park bomber Eric Rudolph said Tuesday her son is enduring inhumane treatment in a federal maximum security prison in Colorado where he is denied books and family visits and his mail is delayed for weeks. ‘They’re (the Federal Bureau of Prisons) a law unto themselves,’ Patricia Rudolph said in a phone interview. ‘They should be the ones behind bars.'”

You can access the letter that Patricia Rudolph sent to the Director of the Federal Bureau of Prisons by clicking here.

Posted at 7:55 AM by Howard Bashman

“Clarence Thomas promotes new book in Atlanta; Journalists at luncheon raise questions about his success and others'”: This article appears today in The Atlanta Journal-Constitution.

Posted at 7:50 AM by Howard Bashman

“Why, Even If You Have Nothing To Hide, Government Surveillance Threatens Your Freedom: The Case Against Expanding Foreign Intelligence Surveillance Act Powers.” John W. Dean has this essay today at FindLaw.

Posted at 7:33 AM by Howard Bashman